Relationship advice from a divorce attorney

Dear Lady Esq.,

My husband of one-year recently told me he is thinking of getting a divorce, based mostly on some recent financial issues we’ve had to deal with as a couple. I do not want to break up with him, but if the split is inevitable I want to protect myself as best I can.

I am thinking about quickly filing for separation. Is that possible?

My child’s FAFSA (federal student loan paperwork) has our combined income because we are married. Also, I should qualify to reduce my house payment from the bank based on my income alone, but not on our combined income.

I kind of see this as an opportunity to hit the reset button. I don’t care about being married. My husband is my partner. If it makes it easier on us financially, I think separation is a solution that should be on the table.

- Till Finances Do Us Part

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear TFDUP,

First of all, there is no such thing as “quick” or “easy” when it comes to changing your marital status. You can file for Divorce or Legal Separation. Both will take a minimum of six months from the date your husband is served with the papers before they can become final in the state of California.

Divorce will end your marriage entirely. Legal Separation is more commonly used by religious people who cannot divorce for religious reasons and for people who want to maintain their former spouse on their health insurance.

If you want to remain on your husband’s health insurance or vice versa you might want to file for Legal Separation, but you should make sure to check first with the insurance carrier that they continue to provide health care to legally separated spouses, and you should also check with the FAFSA people to make sure that your income alone will be considered if you are legally separated rather than divorced. In fact, if you were to remain living with your husband this may require his income be considered for student loans and federal aid, so you want to check with the FAFSA people about your options before making a huge decision based on them. The same goes for your mortgage payments – you need to find out from your lender how they will treat your income for purposes of the loan whether you are divorced, legally separated, or living with your partner, before deciding which route to take.

It is also pertinent to note that if you are married for six months or more in a given year you have to file your taxes as married for that year. This is likely equally applicable for student loan forms. So you may find that it is a year or more before you can legally indicate that you are Divorced or Legally Separated, and by that time your son’s financial aid situation might not be a contributing factor in your decision.

I really like your sentiment in the last paragraph of your question. If your husband is scared and thinking of ending the marriage for financial reasons alone and everything else is working well then you may be right. Divorce or Legal Separation, ending the marital status alone (and thereby the financial implications associated with it) may very well be a reset button that sets your relationship right. A partnership does not need to be regulated by the state of California to be a real working relationship.

At the same time I want you to consider a few things. If your husband is ready to quit the marriage and his commitment to you based on financial reasons alone and without trying to work through things with you first, do you really want him? Can he be relied upon if he tells you one day “til death do us part” and then turns around and says “and by ‘death’ I meant ‘hard financial times”? If you two are going to remain together and you are going to end the legal status of your marital relationship you should also consider what happens to your assets at death as well as your tax filing status. There are benefits to being married including tax breaks and significant estate planning tax breaks that come into play when the first partner dies. You should certainly weigh the current financial benefits against the long-term financial losses and make sure your choice lands you on the better side of the equation.

- Lady Esq.

Dear Lady Esq.,

I was recently on a work-related trip for a few weeks. During that time I had very little phone or internet contact with my husband. While I was away some crises arose. Some disasters happened with our house, my daughter needed help, etc. My husband does not have a lot of parenting experience, experience caring for a home, etc., and he basically freaked out.

When we finally had some time at home alone together he let me know what he had dealt with in my absence, and then he let me know he’s now considering moving out and seeking a divorce.

Instead of being able to identify or communicate to me how he felt, he instead did the math and decided our marriage was going in a direction he could no longer tolerate on a financial responsibility level. Nothing personal.

I have a plan of attack with money. Instead of combining it as we have, I want to separate it entirely. I want each of us to pay a percentage of our household expenses. Money for my daughter can be absolutely separate.

With all that said, I just feel hurt. He was weird and cold when we first saw each other and he lied to me about everything being OK. I feel hurt about the cold way he approached the subject. He told me that he would like to try to make it work for another year, but then he plans to move out. To me, one can’t bargain with someone who has already made up their mind on an outcome and action.

It took all the happy shiny wind out of my sales.

- Sad Homecoming

Dear Sad Homecoming,

I agree with your rational, compromising approach. If his concerns revolve around money issues and you’re willing to come up with a solution, then that should alleviate his concerns and solve the problem. If you made him an offer tailored to his concerns and he’s not willing to consider it as a solution and instead he’s made up his mind to move toward divorce, then perhaps you should move on without him.

There is certainly no point in his sticking around for another year only to then move out. If he’s in, he’s in, and you work together to resolve your issues. If he’s out, he’s out, and you need to get on with your own life.

It sounds like your husband has some communication issues. You are clearly open to hear what he has to say, to ascertain problems, and to work together to solve them. He, on the other hand, is not forthcoming with his concerns, and by the time he communicates them he’s already decided on a solution, and one that meets his needs without concern for yours.

Communication issues and financial issues are the top two reasons couples get divorced. If he is willing to work through these problems with you, then you have a chance. You might want to seek the assistance of a couple’s therapist or a financial adviser or both. If he’s not communicating with you or open to solving these problems together as a couple then I don’t see the relationship working in the long run.

- Lady Esq.

Dear Lady Esq.,

I am involved in a three-person polyamorous gay relationship and am wondering about the best way to proceed in terms of protecting our assets as a group. We are looking to buy a house in the next eighteen months, and are wondering how we go about signing mortgage documents and such since we cannot get married. Also, should we be documenting our finances should the three of us part ways for any reason? This is all new territory for me, but it is something that I see lasting and I want to make sure that we are protecting our assets. Any advice you could give me would be greatly appreciated. Love your column!

- Three’s Company

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear Three’s Company,

You’re in a unique situation because it is not the fact that you’re in a homosexual relationship that is affecting your rights, but rather the fact that you’re in a polyamorous relationship. Any polyamorous relationship – homosexual, heterosexual, or otherwise – will find themselves in the same conundrum as you when were trying to protect their assets.

There are a number of ways that title to real property (real estate) can be held in California, including Joint Tenancy, Tenancy in Common, Sole Ownership, and Community Property. You and your partners would not be eligible for Community Property because it applies to married persons. You would likely want the title to any property you buy as a group to be held in Joint Tenancy or Tenancy in Common, depending on what percentage you want each partner to own and on how you want the property to be handled at death. When you are ready to buy a house you will want to consult with a Real Estate Attorney (rather than a Family Law Attorney) to determine which form of property ownership best meets your needs.

As for your accounts and other assets, the first thing to do is make sure the three of you have discussed your needs and desires and are on the same page as a group. Because you are not married you will not have many of the options available to you that are available to married couples. Most of your account planning will have to be more creative. If you want your money to be joint you’ll want to all be signators with equal power on the same account(s), and then you’ll want a separate signed agreement documenting how you want those accounts to be handled in the event of separation or death. If you want to keep your money separate and share your expenses like roommates you don’t have to do much. But if you want joint accounts you’ll want to consult with a Contracts Attorney and/or an Estate Planning Attorney to make sure any verbal agreements you reach will hold up under the eye of the law.

You’re asking good questions and it’s clear you’re approaching this relationship with a sharp mind and optimism. There are a lot of “traditional” couples that could learn a lot from you. I wish you all the best of luck!

- Lady Esq.

Dear Lady Esq.,

I am a soon-to-be divorced husband who just found out that MY male divorce attorney has engaged in over one hundred sexually charged and explicitly graphic email exchanges with my soon-to-be-ex-wife! I also have proof that they have had dinner together a few times – all while he is negotiating my divorce with her attorney! What should I do? What could happen to him? Thank You.

- Cuckolded by My Attorney

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear Cuckolded by My Attorney,

In all my years of practice I have never heard of such an egregious breach of an attorney’s duty to his client.

First and foremost, if you haven’t done so yet, DON’T SIGN ANYTHING!!! Your attorney’s conduct is clearly not in your best interest. His loyalties may be with your soon-to-be-ex-wife, and I would not trust any legal advice or direction that he has given you.

Contact another divorce attorney, tell them the situation, and ask if they would be willing to substitute in and represent you. Have them look over any drafts of settlement documents, proposed judgments, etc., and make sure that your interests are being represented. This is your top priority – to save yourself!

After you have secured a new attorney and know your legal interests are being represented, THEN worry about how to handle the egregious misconduct of your soon-to-be-former divorce attorney.

You will likely want to report the attorney to the state bar. If you are in California you will contact the California Bar Association to do this. For more information on the remedies available to you and how to file a complaint against your attorney with the state bar of California, click here. If you are not in California you want to contact the state bar association in your state.

However, in addition to reporting him to the state bar, or possibly INSTEAD OF reporting him to the state bar, you may wish to sue your soon-to-be-former attorney for malpractice. Whether you have grounds to sue for malpractice will depend on a number of factors, including whether your attorney failed you IN A LEGAL SENSE. This is not something you yourself will be able to determine.

I suggest that (when looking for your new divorce attorney) you try to find an attorney who will both represent you in your divorce AND give you some guidance on a potential malpractice suit. Maybe you will find an attorney who practices both family law and malpractice, but more likely you’ll be looking for an attorney who will represent you in your divorce and refer you to a malpractice attorney.  Make sure to meet with a malpractice attorney and get their opinion before you file a complaint with the state bar or take any other action.

As far as what can happen to your current attorney, it is possible that he will be reprimanded by the state bar, perhaps even disbarred. If you have enough facts to support and win a malpractice suit against him, you may recover financially from him as well. His conduct is not criminal, so there is likely no other punishment beyond potential reprimand by the state bar and potential financial recovery via a malpractice suit.

- Lady Esq.

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- Lady Esq.

Dear Lady Esq.,

I am in the middle of a divorce. I want out and my husband doesn’t. We have recently signed a document recognizing that we have legally separated, so it appears on paper that we were married for almost 2 years.

I have moved on. I recently moved in with a man I am in love with, an old friend, and we really want to have a baby. Of course we also want to get married, but with my current divorce being dragged out for so long, that will have to wait a while.

My question is, would there be a problem, legally, with having a baby with my boyfriend while I’m still technically married to my ex-husband? Would my husband have any kind of rights to the child? My ex-husband is doing everything he can to drag out this divorce. If there is any way that he can manipulate this situation I am certain he will. But my boyfriend and I are really eager to move on with our lives, and I’m no spring chicken, my clock is ticking!

- Mrs. Tick Tock

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear Mrs. Tick Tock,

The short answer to your question is that your ex husband has no legal rights to the baby you have with your boyfriend, assuming you don’t reconcile the marriage with your ex husband before the divorce is finalized.

The law in California is that a child born during wedlock is assumed to the the biological child of the married parents. If, for example, a wife had an affair and became pregnant and chose to raise the baby with her husband as their child, the man she had the affair with would be out of luck to any paternal rights to the child or to request a paternity test., etc.

It is important to note that the “Date of Separation” plays a key role in this discussion. The Date of Separation is a legal term of art referring to the date that one party (husband or wife) no longer intends to remain in the marriage.

You say that you and your ex husband signed a document indicating you are legally separated. Legal Separation is a legal status, just like “Married” or “Divorced.” Unless you and your ex husband filed papers with the court and established a true Legal Separation in that way, you are not “legally separated” in the eyes of the court. However, what you have done by signing this document is you have established evidence of your “Date of Separation.”

It is quite likely that your “Date of Separation” is earlier than the date you signed this recent paper. But for the sake of your rights as relates to this baby, the recent paper you signed will do the trick. When you and your husband are establishing your “Date of Separation” in your divorce proceedings you will be able to prove that the “Date of Separation” is the date you two signed that recent paper, if not earlier.

Since you were not pregnant before the “Date of Separation,” the court should be able to clearly determine that the child was born out of wedlock, after you and your ex separated in the eyes of the law.

While your ex may try to cause some trouble, the end result should be that he has no parental rights to the baby you have with your boyfriend.

I do suggest that you hire an attorney for the sake of getting the divorce process to conclusion despite your husband’s efforts to drag it out, and to ensure that he has no paternal rights to your child with your boyfriend.

Best of luck to you and your boyfriend. I am glad you have found happiness, and I wish the two of you and your future baby the best of luck!

- Lady Esq.

My dear friends and faithful readers,

I apologize for my long hiatus. I am back now and so glad to see so many comments and questions from all of you. Please feel free to keep them coming, as I am once again at your service.

Additionally, Ask Lady Esq. will now be syndicated on the opinion editorial syndicate iPinion. Check me out Sundays at www.ipinion.me.

- Lady Esq.

Dear Lady Esq.,

I have a friend who is beautiful in that thin, blond, Italian model way, at 5’1. Anyway, she keeps dating lying, cheating, emotionally unavailable, manipulative men. I had her read The Rules, but it didn’t seem to help. Do you have advice? She needs help.

- Concerned Friend

Dear Concerned Friend,

No one can be helped until they want to help themselves.

Your friend may have deep-rooted issues that have to be resolved via therapy. Without exploring and working through her own issues, your friend will likely keep making the same mistakes with men.

I have seen many, many friends be in relationships where I knew that no matter what they told themselves or the world, they were not happy. Or at the very least they were not being true to themselves.

If you want to remain friends with this person during the duration of one of these bad relationships, you can only tell your friend once that a particular guy is not good enough for her. Then you’ve done your duty by being true to your heart and expressing your concern for your friend. After that, you have to be supportive and wait until she comes to her senses. You can tell your friend your true feelings once, then all you can do is wait- for months, years, or maybe even decades- until your friend accepts that the person they are with is not right for them and they would rather be happy than in that relationship.

I myself was once in one of those relationships. I have amazing friends who let me know their concern, then stood by biding their time waiting for me to come to my senses. When I did, I fell apart and had to build myself back up again from the rubble that relationship had made of me. But when I fell apart I was surrounded by loving, forgiving, understanding friends who helped put me back together again. I couldn’t have done it without them.

It is really hard to stand by and watch your friend suffer or make painful mistakes. It is hard to watch someone you love repeat the same mistakes over and over again. But people have to learn from their own mistakes, and only those people who truly want to change are capable of doing so.

If your friend ever expresses to you that she wants help, then get her hooked up with a good therapist right away. Until then, you either stand by to be there for her as she makes the same mistakes over and over, or you distance yourself from her and hope that one day she chooses a better life for herself, and be there for her when that day comes.

- Lady Esq.

Dear Lady Esq.,

If someone has a restraining order against someone, is it OK to get messages through AIM or GCHAT on the internet? I’m wondering if that is a violation of the order? I thought any kind of contact is illegal for the restrained party…?

- Electronically Violated

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear Electronically Violated,

Most standard restraining orders only prevent physical contact, typically requiring the restrained person to stay at least 100 yards away from the person (or persons) who is protected by the restraining order.

A person can certainly ask the court to issue a restraining order that prevents other contact, such as contact by telephone, email, text, chat, etc. However, you would have to specifically ask for that at the restraining order hearing and the court would have to order that for it to become a part of the order. The court would likely only order that if there were a good reason to, so be ready to prove at the hearing that the person you are seeking to be restrained from via phone, chat, etc. has continuously harassed you, threatened you, etc. via phone, email, chat, etc. in the past, thus giving rise to a reason the court should prevent that kind of contact in the future.

If you have a restraining order and it does not specifically state that the restrained person cannot contact you on AIM, GCHAT, they are likely not in violation of the restraining order if they do so. If you feel you need to be protected against such behavior, file for a new restraining order or a modification of your existing restraining order.

In the mean time, protect yourself! Block the restrained person on AIM and GCHAT. Take power into your own hands if possible and prevent them from contacting you via the methods made available by your service providers.

- Lady Esq.

*****UPDATE*****

Dear Electronically Violated,

A colleague friend of mine just updated me with some more information regarding your question.

The Judicial Council Form that you fill out when requesting a Restraining Order (form # DV100) and the Temporary Restraining Order that issues as a result of your filing (and the Order After Hearing that will issue when the hearing has occurred) contain a provision that the restrained person must not contact, directly or indirectly, the protected party/parties. While it specifically states email etc., and not chat, my colleague friend would argue (and likely prevail) that contact by instant message constitutes a violation.

When my colleague friend applies for a Restraining Order on behalf of a client, she always asks for no contact orders and has never not had them granted if the underlying Restraining Order is granted.

What this means to you is that you have at least an argument that the restrained party is violating the current Restraining Order if they are contacting you by chat. If they continue to do so you may wish to file a police report so that you have evidence of the violation of the Restraining Order. And if you end up in Court again regarding the Restraining Order you might want to specifically ask the Judge to make a no contact order part of the Restraining Order so that it is crystal clear to the restrained person that he or she is not allowed to contact you, period.

- Lady Esq.

Dear Lady Esq.,

If California doesn’t recognize your marriage (because you were married in a different state to someone of the same sex), can you still get divorced in California? What else should I know about same sex marriage rights and issues in California?

- Curious

The following legal advice is meant for California residents only. No attorney-client relationship is entered into by the giving of the advice below. Advice is relied upon at the reader’s own risk. Read full disclaimer here.

Dear Curious,

The short answer is, it depends.

The long answer is: This is a burgeoning area of the law, and one that is far from settled. It is hard to give straightforward answers to Lesbian, Gay, Bisexual, and Transgendered (“LGBT”) clients: much of the law in this area remains unclear and undefined.

Same-sex marriages are currently legal in Massachusetts, Connecticut, Iowa, Vermont, and, as of January 1, 2010, New Hampshire. I would say something celebratory here, but I have a hard time crying “yippee!” over a status that is long overdue and a choice that should be an inherent basic human right. Seriously? This is still an issue in 2009?

California, New Jersey, Washington, D.C., Washington, Oregon, and Nevada recognize domestic partnerships, civil unions, and other “marriage-equivalent” legal statuses, while lesser registrations are available in Hawaii, Wisconsin, and Colorado. Having a “marriage-equivalent” option is great in that it bestows rights where otherwise unavailable, but falls far short of what is deserved, and can have the tendency to make LGBT couples feel like second-class citizens.

And then there is the truly bigoted Defense of Marriage Act (“DOMA“), which ensures that federal law does not recognize same sex marriages, thus causing significant legal difficulties for married LGBT couples as well as those who are in registered domestic partnerships, civil unions, and other marriage-like legally recognized relationships. The Respect of Marriage Act (“ROMA“) is currently before the House of Representatives for consideration as the antidote to DOMA. President Obama has stated his opposition to DOMA (though as per his MO he hasn’t actually done anything about it), and the Attorney General is challenging it.

Same sex marriage was legal in California from June 16, 2008 to November 5, 2008. As of today it appears that same sex couples who were married in California during this time can be divorced in the same way that heterosexual couples are, however, DOMA issues can complicate certain aspects of the divorce process, particularly in the areas of palimony, division of property, taxes and estate planning.

Same sex couples who were married November 5, 2008 or after or prior to June 16, 2008 in a state other than California where same sex marriage is legal and have since relocated to California are strongly encouraged to become Registered Domestic Partners in California, as it may be impossible for your attorney to protect your “marriage-equivalent” rights otherwise. This is where my personal passion and my professional duty diverge. Personally, I don’t think same sex couples should have to register as domestic partners, but should be able to protest this differentiated status. Professionally, as an attorney, I must counsel people to protect themselves as best they can within the confines of the current law, and in doing this I must encourage any member of the LGBT community who wishes to protect marriage-similar rights to register as domestic partners in California. In fact, due to a lack of clarity in the current status of the law, I might even encourage same sex couples who were married in California between June 16, 2008 to November 5, 2008 to register as domestic partners, just to be on the safe side.

California Registered Domestic Partnerships can be dissolved in essentially the same way that marriages are dissolved, however, DOMA, can complicate the process. It is unclear whether or not those couples who registered as domestic partners in states other than California may currently dissolve those domestic partnerships here.

It is important to note that a city-registered Domestic Partnership status may not have the same effects, rights, and responsibilities as a state-registered Domestic Partnership status, so it is important to register with the state to ensure the full extent of rights available to you.

Other issues that come up specifically in LGBT cases include adoption and parentage cases, transgender law issues, health care, and estate planning including transfer of property at death.

You should consider contacting an attorney if you:
– are considering domestic partnership,
– were married in a state where same sex marriage is legal and you     have since relocated to California,
– want to know how to ensure that your property transfers to your     partner or spouse at your death,
– want to have your partner or spouse covered under your health       care plan
– want to have a biological or adopted child with your partner or     spouse, or
– have any other life choices that you want to make that may have     legal ramifications.

Depending on your situation you may want to meet with a family law attorney, an estate planning attorney, a tax attorney, or an attorney specializing in LGBT rights.

There are a number of excellent resources available to LGBT couples and individuals with legal questions, including the National Center for Lesbian Rights (“NCLR”) and Equality California. Contacting one of these organizations is a great first step to ensure that your rights are protected.

At the end of the day it is imperative that we be proactive. Donate to NCLR, Equality California, and other such organizations. Volunteer. Protest. Write or call your Congressman, your Representative, your Governor. Make your voice heard and fight for your rights and for the rights of your fellow human.

- Lady Esq.